Formal Opinion 1986-4

April 30, 1986

ACTION: Formal Opinion

OPINION:

An attorney is currently in the process of warehousing files on closed and settled cases which, for the most part, involved claims of negligence and malpractice. Guidance is sought as to the ethical considerations raised by the retention and disposition of such files.

Preliminarily, we note that, in some instances, the retention of files may be required by statute or court rule, see, e.g., 22 NYCRR 603.15 (1st Dep’t); 22 NYCRR 691.21 (2d Dep’t), the applicability of which is a question of law beyond the jurisdiction of this Committee.

With regard to ethical obligations, a lawyer must consider two factors in determining how to handle the files: first, certain documents in a lawyer’s files may belong to the client; second, in some instances, to prevent prejudice to the client, a lawyer may have to afford the client reasonable access to the files, even to documents belonging to the lawyer. Cf. N.Y. State 398 (1975). The ethical obligations, therefore, require that a balance be struck between the client’s ownership interest in the papers as well as the client’s possible need for the information in the future and the lawyer’s interest in avoiding being overburdened with closed files.

Initially, it must be determined whether the papers in question, including work product, belong to the client or to the attorney. This is a legal question beyond our jurisdiction. See N.Y. City 81-44; see also Kentucky Op. E-300 (1985), Maryland Op. 82-11 (1981), ABA Inf. Op. 1385 (1977). We note, however, that some ethics committees have addressed this subject and have reached differing conclusions. See, e.g., N.Y. State 398 (1975) (work product of attorney belongs to attorney), Oregon Op. 494 (1983) (legal analysis belongs to attorney unless attorney specifically agreed to provide it to client), Michigan Ops. CI-926 (1983) and CI-722 (1982) (work product of attorney belongs to the client).

With respect to papers that have been determined to be the client’s property, the lawyer should contact the client before destroying such papers and ask whether the client wants delivery of the closed files. See N.Y. City 82-15. We do not believe that there is any hard and fast rule as to when the client should be contacted, and good judgment should govern in making this decision. While an attorney is not ethically obligated to do so, the Committee believes that it is good practice to discuss with the client the retention and disposition of the files at the time of the termination of the matter, or, in appropriate circumstances when there is a continuing client relationship, at the conclusion of the representation. But see Nassau County Op. 81-10 (retain file for seven years after matter closes and then contact client).

Alternatively, the lawyer may simply deliver the documents to the client with appropriate advice regarding factors the client should consider in determining which files to preserve. Where the lawyer is unable to contact the client, the lawyer should be guided by the foreseeable need for the documents in question in determining whether to destroy them.

With respect to papers that belong to the lawyer, or papers as to which no clear ownership decision can be made, the answer to the questions whether and how long to retain such files is primarily a matter of good judgment, in the exercise of which the lawyer should bear in mind the possible need for the files in the future. See ABA Inf. Op. 1384 (1977); N.Y. State 460 (1977). The ABA guidelines, which follow, are particularly helpful:

1. Unless the client consents, a lawyer should not destroy or discard items that . . . probably belong to the client. . . .

2. A lawyer should use care not to destroy or discard information that the lawyer knows or should know may still be necessary or useful in the assertion or defense of the client’s position in a matter for which the applicable statutory limitations period has not expired.

3. A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer.

4. In determining the length of time for retention or disposition of a file, a lawyer should exercise discretion. The nature and contents of some files may indicate a need for longer retention than do the nature and contents of other files, based upon their obvious relevance and materiality to matters that can be expected to arise.

5. A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer’s receipt and disbursement of trust funds.

6. In disposing of a file, a lawyer should protect the confidentiality of the contents.

7. A lawyer should not destroy or dispose of a file without screening it in order to determine that consideration has been given to the matters discussed above.

8. A lawyer should [consider preserving], perhaps for an extended time, an index or identification of the files that the lawyer has destroyed or disposed of. [We have modified this guideline because we do not believe that, in all instances, the retention of an index is mandated.]

Accordingly, subject to the legal questions noted above which we do not resolve, the ethical criteria and guidelines that have been discussed provide a framework for an attorney in exercising judgment and discretion concerning the retention, delivery or destruction of files.